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ASCEND ELEMENTS, INC.
NON-DISCLOSURE AGREEMENT
RECITALS
AE is engaged in a project known as the ASCEND ELEMENTS, INC., HOPKINSVILLE, KENTUCKY PROJECT (the “Project”).
Recipient desires access to confidential agreements and other proprietary information concerning then Project in order to consider, prepare and submit a bid proposal to particiate on the Project (the “Purpose”) as an independent contractor under an agreement with AE or its designated contractor (the “Transaction”). AE expects to make available to the Recipient certain non-public information concerning the Project and other proprietary information of AE concerning AE products and proposed products, processes, plans, operations, customers, suppliers, partners, assets, and/or liabilities which it considers to be valuable and confidential as may be necessary, in AE’s sle discretion, to submit a bid for a possible Transaction.
The parties intend that all disclosures of Confidential Information (as defined herein) by AE or its officers, employees, agents, or advisors (collectively, “Representatives”) to the Recipient or its officers, employees, agents, or advisors (also collectively referred to herein as “Representatives” when used with respect to the Recipient) shall be used solely and exclusively for the Purpose, subject to the terms and conditions of this Agreement, whether communicated orally, in writing, by electronic transmission, or otherwise, and whether disclosed prior to or after the Effective Date of this Agreement.
Accordingly, in consideration of the foregoing Recitals and the terms and conditions of this Agreement, AE and the Recipient agree as follows:
1. CONFIDENTIAL INFORMATION. As used herein, “Confidential Information” means any information disclosed (in whatever form, whether oral, written, electronic or otherwise) by or on behalf of AE to the Recipient or its Representatives, including, without limitation, all information, data and know-how, whether orally, visually or in electronic or tangible form or otherwise, relating to AE and its current or prospective business and to existing or potential AE Products, processes and services, including without limitation, trade secrets, inventions, technology, designs, methods, know-how, show-how, systems, software programs, works of authorship, financial records and information including pricing methods, customer and prospective customer lists and information, contractors, employees, plans, proposals, projections, and marketing plans and strategies. and the tangible materials containing any such information, whether prepared by AE or the Recipient and/or its Representatives, including, without limitation, written and printed documents, CD-ROMs, DVDs, computer disks and tapes, whether machine- or user-readable, other non-public information relating to either party’s business; and Personally Identifiable Information. The term “Personally Identifiable Information” shall mean any information relating to an identified or identifiable individual. For the avoidance of doubt, Personally Identifiable Information shall include all “nonpublic personal information,” as defined under the Gramm-Leach-Bliley Act (15 United States Code (“U.S.C.”) §6801 et seq.), “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996 (42 U.S.C. §1320d), and “Personal Data” as that term is defined in EU Data Protection Directive (Directive 95/46/EEC) on the protection of individuals with regard to processing of personal data and the free movement of such data.
2. PURPOSE OF DISCLOSURE OF CONFIDENTIAL INFORMATION. Any disclosure of Confidential Information to the Recipient or its Representatives under this Agreement shall be solely for evaluating a possible Transaction on a “need to know” basis and shall not be used by Recipient for any other purpose, including without limitation to affect in any way the Recipient’s relative competitive position to AE, or made available to third parties.
3. USE AND OWNERSHIP OF CONFIDENTIAL INFORMATION. The Recipient agrees that, except as otherwise may be approved in writing by AE, (a) the Recipient and its Representatives will use the Confidential Information solely for the Purpose to evaluate a possible the Transaction, and (b) the Recipient and its Representatives will take all steps reasonably necessary to maintain the confidentiality of the Confidential Information, such efforts to be not less than the efforts used by the Recipient to maintain the confidentiality of its own trade secrets and other non-public information of a highly confidential nature. Notwithstanding the foregoing, Confidential Information may be disclosed to the Recipient’s Representatives who need to know such Confidential Information for purposes of evaluating the Transaction between the parties, who are provided a copy of this Agreement, and who are directed by the Recipient to treat such Confidential Information in accordance with the provisions of this Agreement. The Recipient shall be responsible for any breach of this Agreement by any of its Representatives. All Confidential Information will remain the exclusive property of AE, and the Recipient will have no rights, by license or otherwise, to use the Confidential Information except as expressly provided herein.
4. ADDITIONAL OBLIGATIONS. The Recipient agrees that, without the prior written consent of AE, the Recipient and its Representatives will not disclose to any other person the fact that Confidential Information has been made available hereunder or that discussions or negotiations are taking place concerning a possible Transaction involving the parties or the status thereof. In addition, both during the pendency of such discussions or negotiations and thereafter, neither the Recipient nor its Representatives will disclose to any other person the particulars of such discussions or negotiations or the identities of the parties to such discussions or negotiations. Recipient shall be responsible for the compliance by its Representatives to the terms of this Agreement.
5. COMPELLED DISCLOSURE. If the Recipient or its Representatives are compelled (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any Confidential Information, the Recipient shall provide AE with prompt notice of any such request or requirement so that AE may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by AE, the Recipient or any of its Representatives are nonetheless, in the opinion of counsel, legally compelled to disclose any Confidential Information to any tribunal, the Recipient or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the Confidential Information which such counsel advises is legally required to be disclosed. The Recipient shall exercise reasonable efforts to preserve the confidentiality of the Confidential Information, including, without limitation, by cooperating with AE, at AE’s expense, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such tribunal.
6. EXCLUSIONS. The restrictions set forth in this Agreement shall not apply to Confidential Information which (a) is or becomes publicly available without breach of this Agreement; (b) can be shown by documentation to have been known to the Recipient prior to its receipt from AE; (c) is rightfully received from a third party who did not acquire or disclose such information by a wrongful or tortious act; or (d) can be shown by documentation to have been developed by the Recipient without the use of or reference to any Confidential Information.
7. NO SOLICITATION. The Recipient hereby agrees that during the period commencing on the execution of this Agreement and continuing through the consummation of the Transaction, Recipient shall not solicit any AE employee or contractor to leave the employment or contract relationship with AE or otherwise alter his, her or its relationship with AE to AE’s detriment. If the Transaction is not consummated, the Recipient hereby agrees that for a period of two (2) years Recipient shall not solicit or hire (except as a result of the employee’s response to a general, broadly advertised employment advertisement) any of AE’s employees, or engage any of AE’s contractors, or solicit or induce such employees or contractors to otherwise alter his, her or its relationship with AE to AE’s detriment.
8. TERMINATION OF DISCUSSIONS. If either party notifies the other party in writing that it does not wish to proceed with discussions concerning the Transaction, then, upon written request by AE, the Recipient will promptly return or destroy all Confidential Information provided to it by AE, including all copies thereof in the possession of the Recipient and its Representatives, and will certify in writing that it has done so.
9. TERM; DURATION OF OBLIGATIONS. This Agreement shall have a term of three (3) years after the Effective Date, whereupon this Agreement shall automatically terminate unless the parties agree to extend the term of this Agreement in writing prior to such termination date. Notwithstanding the foregoing, the Recipient’s obligations of confidentiality and non-use under this Agreement shall continue in full force and effect following any termination or expiration of this Agreement. The obligations of confidentiality and non-use under this Agreement with respect to any Confidential Information that is identified by AE as a “trade secret,” or would otherwise be deemed a “trade secret” under applicable law, shall survive the expiration or termination of this Agreement indefinitely.
10. NO LICENSE. No license to the Recipient under any trademark, patent, copyright, or any other intellectual property right, now existing or hereafter acquired or created, is either granted or implied by the disclosure of Confidential Information to the Recipient.
11. NO WARRANTY. The Recipient understands and acknowledges that the Confidential Information disclosed hereunder is provided “AS IS” and AE makes no representation or warranty, express or implied, as to (a) the accuracy, completeness, reliability, or safety of such Confidential Information, (b) the ability of the Recipient to make use thereof, (c) fitness for a particular purpose, or (d) the non-infringement of trademarks, patents, copyrights, mask protection rights or any other intellectual property rights, or other rights of the third persons. Without limiting the foregoing, AE shall have no liability or responsibility for errors or omissions in, or any decisions made by the Recipient in reliance on, any Confidential Information disclosed under this Agreement. Only those representations or warranties that are made in a definitive agreement, when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such agreement, will have any legal effect.
12. INJUNCTIVE RELIEF. The Recipient acknowledges that disclosure or use of Confidential Information in violation of this Agreement could result in irreparable harm to AE for which monetary damages may be difficult to ascertain or an inadequate remedy. The Recipient therefore agrees that AE will have the right, in addition to its other rights and remedies, to injunctive relief for any violation of this Agreement without posting bond, or by posting bond at the lowest amount required by law.
13. DEFINITIVE AGREEMENT. The Recipient understands and agrees that no contract or agreement setting forth the terms of the Transaction shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered. The Recipient also agrees that unless and until a final definitive agreement regarding the Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such Transaction by virtue of this Agreement, except for the matters specifically agreed to herein. For purposes of this Agreement, the term “definitive agreement” does not include an executed letter of intent or any other preliminary written agreement. The Recipient further acknowledges and agrees that AE reserves the right, in its sole discretion, to provide or not provide information to the Recipient under this Agreement, to reject any and all proposals made by the Recipient or any of its Representatives with regard to a possible Transaction between the parties, and to terminate discussions and negotiations at any time.
14. CONFLICT WITH EXISTING AGREEMENT. Notwithstanding anything to the contrary contained herein, in the event that the provisions of this Agreement conflict with the terms and conditions of a confidentiality agreement by and between AE and the Recipient in effect prior to the Effective Date, the provisions of this agreement shall govern and control, except to the extent provided in the second sentence of Section 16.
15. WAIVER. It is understood and agreed that no failure or delay by AE in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power, or privilege hereunder.
16. MISCELLANEOUS. In case any provision of this Agreement shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. This Agreement represents the entire agreement of the parties concerning the subject matter hereof and supersedes all prior agreements with respect to the subject matter hereof, except that to the extent any existing written agreement between the parties hereto governs prior disclosures of Confidential Information for purposes other than the consideration of a possible Transaction, such prior written agreement shall control with respect to Confidential Information disclosed under the terms of such prior written agreement. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. This Agreement may not be modified except in writing by the parties. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. The Recipient hereby irrevocably and unconditionally agrees to the exclusive jurisdiction of any state or federal court located in the Commonwealth of Massachusetts for any actions, suits or proceedings arising out of or relating to this Agreement.
To receive an application questionnaire for qualification to receive access to contract bid and other confidential information (“Confidential Information”) relating to the Ascend Elements, Inc. Hopkinsville, Kentucky Project (the “Project”), the Recipient must accept the Confidentiality terms and conditions available on the Web here and visible on this page. (the “Confidentiality Terms”).
By completing and submitting the information below to request an application and, subject to acceptance of the application, access Confidential Information, you expressly acknowledge receipt of the Confidentiality Terms and explicitly agree to all the terms and conditions of this Agreement and the Confidentiality Terms.
If you do not accept the Confidentiality Terms, then you must not submit your information or access the Project information.
— the undersigned entity has received and agrees to the Confidentiality Terms